Las Vegas Taxpayer Comm. v. City Council

• Decision Date: 28 May 2009
• Docket Number: No. 53657.,53657.
• Citation: 208 P.3d 429
• Parties: LAS VEGAS TAXPAYER ACCOUNTABILITY COMMITTEE; Las Vegas Redevelopment Reform Committee; D. Taylor; Christopher Bohner; and Ken Liu, Appellants, v. CITY COUNCIL OF the CITY OF LAS VEGAS, Nevada; Beverly K. Bridges, In her Official Capacity as City Clerk of the City of Las Vegas; Livework, LLC, A Delaware Limited Liability Company; FC Vegas 20, LLC, A Nevada Limited Liability Company; FC Vegas 39, LLC, A New York Limited Liability Company; and Downtown Las Vegas Alliance, A Nevada Nonprofit Corporation, Respondents.
• Court: Nevada Supreme Court

208 P.3d 429

LAS VEGAS TAXPAYER ACCOUNTABILITY COMMITTEE; Las Vegas Redevelopment Reform Committee; D. Taylor; Christopher Bohner; and Ken Liu, Appellants, v. CITY COUNCIL OF the CITY OF LAS VEGAS, Nevada; Beverly K. Bridges, In her Official Capacity as City Clerk of the City of Las Vegas; Livework, LLC, A Delaware Limited Liability Company; FC Vegas 20, LLC, A Nevada Limited Liability Company; FC Vegas 39, LLC, A New York Limited Liability Company; and Downtown Las Vegas Alliance, A Nevada Nonprofit Corporation, Respondents.

No. 53657.

Supreme Court of Nevada.

May 28, 2009.

McCracken, Stemerman & Holsberry and Richard G. McCracken, Andrew J. Kahn, and Paul L. More, Las Vegas, for Appellants.

Kummer Kaempfer Bonner Renshaw & Ferrario and Tami D. Cowden, Mark E. Ferrario, and Jason Woodbury, Las Vegas, for Respondents Livework, FC Vegas 20, FC Vegas 39, and Downtown Las Vegas Alliance.

Bradford R. Jerbic, City Attorney, and Phil Byrnes, Deputy City Attorney, Las Vegas; Lewis and Roca LLP and Daniel F. Polsenberg, Jacqueline A. Gilbert, and Jennifer B. Anderson, Las Vegas, for Respondents City Council of the City of Las Vegas and Beverly K. Bridges.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, C.J.:

In this appeal, we consider whether the district court properly refused to require the Las Vegas City Council to place a proposed local initiative and referendum on the June 2009 ballot for the general city election. In reaching its decision, the district court ruled that the City Council had discretion to consider the measures' substantive validity in determining whether to place them on the ballot. We disagree and conclude that the City Council improperly refused to place these measures on the ballot. In the future, should the City Council believe that a ballot measure is invalid, it must comply with its statutory duty to place the measure on the ballot, and it may then file an action in district court challenging the measure's validity.

Nevertheless, in determining whether the district court abused its discretion in denying relief, and based on considerations of judicial economy and efficiency, we must consider the City of Las Vegas's objections to the statute while placing the burden on the City to demonstrate the measures' invalidity. The district court concluded that NRS 295.009, which requires that ballot questions pertain to a single subject and that they include an accurate description of effect, applies to municipal initiatives and referenda. We conclude that the district court's ruling was correct because, by its terms, the statute applies to all petitions for an initiative or referendum. The district court further rejected appellants' contention that NRS 295.061's time limits bar consideration of the City's objections to the measures, holding that this statute applies only to statewide measures. The district court's reasoning, based on the statute's language, was sound, and we determine that the district court properly interpreted NRS 295.061. Finally, in applying NRS 295.009 to the measures at issue, the district court properly found that the proposed initiative pertains to more than one subject and that the description of effect for the proposed referendum is materially misleading. Therefore, we affirm the district court's order denying appellants' petitions to require that these measures be placed on the ballot.

FACTS AND PROCEDURAL HISTORY

Appellants are two unincorporated associations formed pursuant to NRS 295.205 to submit and circulate a proposed initiative and referendum and three individuals who are members of both committees and registered voters. Respondents are the Las Vegas City Council and Las Vegas City Clerk Beverly K. Bridges, as well as parties who were permitted to intervene in the district court.¹

One of the factors motivating appellants to organize the committees and circulate the ballot measures was their objections to a redevelopment project for the new city hall in Las Vegas. The agreement between the City and the respondent developers is for a lease-purchase arrangement, whereby the City would lease the city hall from the developers, with an option to purchase the property.

In December 2008 and January 2009, appellants circulated two petitions within the City of Las Vegas: the Las Vegas Taxpayer Accountability Act Initiative (the "Taxpayer Initiative") and the Las Vegas Redevelopment Reform Referendum (the "Redevelopment Referendum"). The Taxpayer Initiative would amend the Las Vegas Charter to add a new section with two provisions. The first provision requires voter approval for lease-purchase arrangements that obligate the City to pay more than $2 million per year; it mandates that all such arrangements contemplated for the next two years be presented at each general election. The second provision designates the voters of Las Vegas as the City's "legislative body," as that term is used in certain redevelopment statutes. The latter provision would have the effect of requiring voter approval for key aspects of the redevelopment planning process under Nevada law, including adoption of a plan, amendment of and material deviation from a plan, and approval of certain redevelopment projects. The Redevelopment Referendum seeks to repeal Las Vegas Ordinance 5830, which was passed in 2006 and which adopted the Amended and Restated Redevelopment Plan that is currently in place for Las Vegas.

On December 9, 2008, appellants submitted the form of these petitions to the Las Vegas City Clerk, along with affidavits from the committee members, as required by NRS 295.205(1). They then began to gather signatures. On January 22, 2009, appellants presented signed petitions containing more than twice the minimum number of signatures required by Nevada law.

In the interim, by December 19, 2008, shortly after the petitions were filed with the City Clerk, the Las Vegas mayor voiced disapproval of the measures and indicated that the measures would not appear on the ballot. Following this announcement, appellants sent a letter to the Las Vegas City Attorney asking for information about the City's objections. The City did not respond to the letter and did not file any court action to enjoin or otherwise prevent the measures from proceeding.

The Clark County Department of Elections, which was charged with reviewing the signed petitions, determined on January 29, 2009, that the petitions contained a sufficient number of signatures. On February 10, 2009, the City Clerk issued an official certification of the petitions' sufficiency. Appellants requested an explanation for why the certification was delayed; the Clerk stated that the City was "looking into its legal options."

At a council meeting on March 4, 2009, after continuing the matter from its February 17, 2009, meeting, the City Council officially announced that it would not approve the City Clerk's certifications of sufficiency or place the measures on the ballot. The Council based its decision on an opinion from the City Attorney's office. The City does not dispute that appellants complied with the procedural requirements for collecting signatures and submitting their petitions or that sufficient signatures were obtained.

Less than a week after the March 4 City Council meeting, appellants filed an original petition for a writ of mandamus with this court, Las Vegas Taxpayer Accountability Committee v. City Council of Las Vegas, Nevada, Docket No. 53388, insisting that because of time constraints, they had no alternative but to seek relief from this court in the first instance. The developers who are parties to the city hall contract were permitted to intervene and file an answer, and an amicus brief was filed by the Downtown Las Vegas Alliance and others. The intervenors and the amici urged this court to keep the measures off the ballot.

Following oral argument, this court denied the petition in an order, holding that appellants were required to seek relief in the district court in the first instance. The order specifically noted that expedited proceedings are available at the district court level and, in essence, rejected appellants' contention that they had no time to proceed in district court.

On April 10, 2009, two days after this court denied the writ petition, appellants filed a district court action seeking mandamus and declaratory relief. The district court set an expedited hearing that began on the afternoon of April 15, 2009, and continued on April 16, 2009. The hearing included both argument and testimony, primarily from Las Vegas City Attorney Bradford Jerbic. Jerbic testified concerning the measures' asserted shortcomings that, in the City's view, properly prevented their placement on the ballot.

The district court issued its ruling on Friday, April 17, 2009. In a clear, thorough order, the district court denied appellants' requested relief. First, the district court held that, under this court's precedent, it could not compel the City to place invalid measures on the ballot. Accordingly, the district court determined that the City's objections to the measures must be examined. The district court then concluded that NRS 295.009's single-subject and description-of-effect requirements applied to municipal ballot questions, and both measures were invalid under that statute: the initiative violated the single-subject requirement, and the referendum's description of effect was materially misleading. The district court therefore denied appellants any relief. This appeal followed.

DISCUSSION

In resolving this appeal, we first consider appellants' argument that the City Council and City Clerk had a ministerial duty to place the measures on the ballot once the City Clerk had confirmed that they had sufficient signatures and met all procedural requirements. While we agree with appellants' position, we nevertheless then turn to respondents' objections to the measures, while placing the burden on respondents to...